Babies born to illegal alien mothers within U.S. borders are called anchor babies because under the 1965 immigration Act, they act as an anchor that pulls the illegal alien mother and eventually a host of other relatives into permanent U.S. residency. (Jackpot babies is another term).

The United States did not limit immigration in 1868 when the Fourteenth Amendment was ratified. Thus there were, by definition, no illegal immigrants and the issue of citizenship for children of those here in violation of the law was nonexistent. Granting of automatic citizenship to children of illegal alien mothers is a recent and totally inadvertent and unforeseen result of the amendment and the Reconstructionist period in which it was ratified.

Post-Civil War reforms focused on injustices to African Americans. The 14th Amendment was ratified in 1868 to protect the rights of native-born Black Americans, whose rights were being denied as recently-freed slaves. It was written in a manner so as to prevent state governments from ever denying citizenship to blacks born in the United States. But in 1868, the United States had no formal immigration policy, and the authors therefore saw no need to address immigration explicitly in the amendment.

In 1866, Senator Jacob Howard clearly spelled out the intent of the 14th Amendment by stating:

“Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

This understanding was reaffirmed by Senator Edward Cowan, who stated:

“[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word…”

The phrase “subject to the jurisdiction thereof” was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.

Supreme Court decisions

The correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.

Over a century ago, the Supreme Court appropriately confirmed this restricted interpretation of citizenship in the so-called “Slaughter-House cases” [83 US 36 (1873) and 112 US 94 (1884)]13. In the 1884 Elk v.Wilkins case12, the phrase “subject to its jurisdiction” was interpreted to exclude “children of ministers, consuls, and citizens of foreign states born within the United States.” In Elk, the American Indian claimant was considered not an American citizen because the law required him to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.”

The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe “direct and immediate allegiance” to the U.S. and be “completely subject” to its jurisdiction. In other words, they must be United States citizens.

Congress subsequently passed a special act to grant full citizenship to American Indians, who were not citizens even through they were born within the borders of the United States. The Citizens Act of 1924, codified in 8USCSß1401, provides that:

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.

In 1889, the Wong Kim Ark Supreme Court case10,11 once again, in a ruling based strictly on the 14th Amendment, concluded that the status of the parents was crucial in determining the citizenship of the child. The current misinterpretation of the 14th Amendment is based in part upon the presumption that the Wong Kim Ark ruling encompassed illegal aliens. In fact, it did not address the children of illegal aliens and non-immigrant aliens, but rather determined an allegiance for legal immigrant parents based on the meaning of the word domicil(e). Since it is inconceivable that illegal alien parents could have a legal domicile in the United States, the ruling clearly did not extend birthright citizenship to children of illegal alien parents. Indeed, the ruling strengthened the original intent of the 14th Amendment.

The original intent of the 14th Amendment was clearly not to facilitate illegal aliens defying U.S. law and obtaining citizenship for their offspring, nor obtaining benefits at taxpayer expense. Current estimates indicate there may be between 300,000 and 700,000 anchor babies born each year in the U.S., thus causing illegal alien mothers to add more to the U.S. population each year than immigration from all sources in an average year before 1965. (See consequences.)

American citizens must be wary of elected politicians voting to illegally extend our generous social benefits to illegal aliens and other criminals.

9. Dr. John C. Eastman, Professor of Law, Chapman University School of Law, Director, The Claremont Institute Center for Constitutional Jurisprudence, Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty – Testimony, U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Border Security and Claims (September 29, 2005)